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Radaszewski v. Garner

Case Date: 12/10/2003
Court: 2nd District Appellate
Docket No: 2-02-1276 Rel

No. 2--02--1276


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

DONNA RADASZEWSKI, Guardian for
Eric Radaszewski, on His Behalf,

          Plaintiff-Appellant, 

v.

JACKIE GARNER, Director, The 
Department of Public Aid,

          Defendant-Appellee.

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)		 Appeal form the Circuit 
Court of Du Page County.



No. 00--CH--1475

Honorable
Thomas J. Riggs and
Robert E. Byrne
Judges, Presiding.


JUSTICE GROMETER delivered the opinion of the court:

Plaintiff, Donna Radaszewski, filed an action as guardian for and on behalf of her son, EricRadaszewski, in the circuit court of Du Page County. Plaintiff sought, inter alia, to enjoin theenforcement of certain regulations promulgated by the Illinois Department of Public Aid (IDPA) thatbar her son from receiving the level of aid he received prior to turning 21. Jackie Garner, thedefendant and director of the IDPA, moved to dismiss the complaint pursuant to section 2--615 ofthe Civil Practice Law (735 ILCS 5/2--615 (West 2002)). The circuit court agreed with defendantand granted judgment on the pleadings. For the reasons that follow, we reverse and remand.

I. BACKGROUND

The following is taken from plaintiff's complaint, supporting documentation, and other courtdocuments of which we may take notice (Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 275 (2001) ("a court of review may take judicial notice of prior litigation")). Plaintiff is themother of Eric Radaszewski, a disabled adult. Eric was born on August 5, 1979, and turned 21 inAugust 2000. He receives disability benefits through the federal Supplemental Security Incomeprogram and is eligible for Medicaid.

In February 1992, Eric was diagnosed with brain cancer. He suffered a stroke on December24, 1993, after he had undergone radiation therapy, chemotherapy, and surgery. The cancer, stroke,and surgery have left Eric with a low level of mental and bodily functioning.

In Eric's physician's opinion, Eric requires individual 24-hour private duty nursing in order tosurvive. During the five years leading up to his twenty-first birthday, 16 hours of private duty nursingper day were funded by Medicaid. His parents, who were specially trained to care for him, providedthe balance of the care. Medicaid also funded an additional 336 hours of nursing services per yearto provide his parents some respite. Shortly before Eric's twenty-first birthday, state officialsinformed plaintiff that she should apply for funding through an alternate program. It was the IDPA'sposition that it did not fund private duty nursing for individuals over the age of 21 in accordance withwhat plaintiff alleges to be an unwritten policy. Plaintiff applied for the alternate program throughthe Office of Rehabilitation Services (ORS). On February 18, 2000, the ORS issued a decision statingthat Eric was entitled to aid in the amount of $4,943 per month. According to plaintiff, this level offunding only pays for five hours of nursing per day. Plaintiff appealed the ORS's decision. OnAugust 18, 2000, Ann Patla, the former director of the IDPA, issued an opinion affirming the ORS'sdecision.

On September 1, 2000, plaintiff filed an action in the United States District Court for theNorthern District of Illinois seeking an injunction for an alleged violation of the federal Medicaidprogram. The federal court denied plaintiff's request for a preliminary injunction, and plaintiffappealed this ruling. Plaintiff then commenced the instant action on December 1, 2000. Plaintiff'sinitial complaint alleged violations of the state Medicaid plan, section 140.435 of the IllinoisAdministrative Code (89 Ill. Adm. Code